Journalists in Ferguson: Know your rights

The First Amendment affords reporters broad but not perfect protection

Reporting on protests is no easy job—just ask the 16 journalists arrested so far while covering the events in Ferguson, MO, following the death of Michael Brown. Amid clashes between protesters and police, those journalists went places where they weren’t supposed to go, and they did things they weren’t supposed to do.

Or so said the police.

The situation in Ferguson remains fluid, and to help readers and journalists alike make sense of the increasing reports of press freedom violations there, it would be helpful to address a few of the issues involved from a legal perspective that has been largely unexamined by Ferguson news coverage.

Does the First Amendment provide reporters a general right to gather the news?

Eh, sort of. The First Amendment guarantees the freedoms of speech and press, among others, and their protections focus mainly on the right to communicate—the right of newspapers to publish, the right of radio stations to broadcast, the right of citizens to criticize the government. Less clear are the protections for gathering information.

The First Amendment’s legislative history, sparse as it is, doesn’t suggest that press freedom includes newsgathering. But gathering is related to communicating, because you can’t communicate what you can’t gather. Justice Byron White put it this way, in the 1972 case Branzburg v. Hayes: “Without some protection for seeking out the news, freedom of the press could be eviscerated.”

Although the Supreme Court has acknowledged that newsgathering is important, it has not determined how much the First Amendment protects it. The cases in this area make just one thing clear: Reporters do not enjoy greater rights than members of the public to gather information.

Rather, reporters act as public representatives when gathering facts, the “eyes and ears of the public,” as Chief Justice Warren Burger said when announcing the judgment in the 1980 case Richmond Newspapers v. Virginia. The idea is that most people can’t get for themselves the information they need to be informed and to participate in the political process, so they have to rely on the press.

Okay, so, what rights do reporters have to gather the news at protests? Do they need credentials?

Most of the Ferguson protests have unfolded on public sidewalks and streets. Although it’s unlawful to obstruct traffic, streets and sidewalks otherwise are the favored children of First Amendment law. They’re a type of public forum where the press is free, generally, to gather the news. In such places, protesters can do their thing, and reporters can do their thing—documenting and recording what easily can be observed, free from government interference.

Importantly, though, that doesn’t mean reporters can do whatever they want. The government may impose time, place, and manner restrictions on the use of a public forum as long as the restrictions are content-neutral and reasonable (as in, a city council might pass an ordinance requiring a permit to use a megaphone in a residential area, in the interest of controlling noise levels). Reporters must abide by those restrictions.

That said, assuming a protest is in a public forum, reporters don’t need credentials to cover it—they enjoy a right of access along with the public. They don’t need permission to be there, nor do they need permission to engage there in newsgathering activities. Still, credentials are a good idea, though I hesitate to say they can’t hurt. During the Occupy Wall Street protests in 2011, the NYPD used them to identify and corral reporters during the Zuccotti raid.

Importantly credentials, even those issued by the police, won’t immunize reporters from arrest. Rather, they can grant the right to cross police lines, at the discretion of on-site officers, and they can establish why the reporter is there (i.e., to gather the news rather than to protest). In many cases, the police will respect the rights of credentialed reporters and give them the space they need to work. Too often, though, the Ferguson protests have been a different story.

What happened to the reporters detained or arrested while covering the Ferguson protests? Can they use the First Amendment as a defense?

In all the cases I’m aware of, no charges were filed and the reporters didn’t have to appear in court—they were simply released after being detained. Of course, the fact that no charges were filed does not change the significance of a detainment. That kind of action alone can send a chilling message: Gather the news at your peril.

If a reporter did face charges, the First Amendment might not be of much help. The Supreme Court has ruled consistently that laws applying to the public also apply to the press—reporters may not hide behind the First Amendment if they commit crimes while gathering the news (like interfering with the ability of a police officer to perform his lawful duties).

Do reporters have the right in public places in Ferguson to record police activity?

Generally, yes! Even the local and state law enforcement agencies say so: They signed an agreement last week acknowledging that “the media and members of the public have a right to record public events” in the absence of extenuating circumstances.

Moreover, in 2012 the US Department of Justice released a letter asserting that the public has a First Amendment right to record police activity. In 2013, the DOJ urged a federal court to say the same. And finally, in 2011 and 2014, the US Court of Appeals for the First Circuit held that such a right exists.

In its 2011 opinion, the First Circuit noted that recording police activity promotes the discussion of public affairs, that such recording “aids in the uncovering of abuses,” and that the police “are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights.” That said, the right isn’t absolute—it’s subject to time, place, and manner restrictions (for example, an officer could close an accident scene for safety reasons and thereby restrict the public’s ability to record police activity there).

In a related area, it’s also worth mentioning that this year the US Supreme Court ruled that police must get a search warrant before examining the contents of a cellphone taken from an arrestee. The justices said a warrantless search would be okay only where the police can prove exigent circumstances (such as preventing a terrorist attack) after the fact to a judge.

What happens if a police officer unlawfully interferes with a reporter while she’s gathering the news?

The reporter would file in federal court a “1983 action,” under 42 U.S.C. ยง 1983. It allows people to sue government officials for depriving them of constitutional or civil rights. Basically, the reporter would claim that by unlawfully interfering with her newsgathering (for example, denying her access to a public forum for no good reason), the police violated her First Amendment rights.

But it can be difficult for a reporter to establish that by interfering with newsgathering, the police violated her First Amendment rights. In the example I gave—denying access to a public forum for no good reason—the court would consider whether denying such access infringed on her right to be there. Public forums make an easy example, but in other areas courts have to make closer calls. Second, it can be difficult for a reporter to establish that the interference harmed her. She’d have to explain intangibles like timeliness and newsworthiness, which to many lie somewhere between abstractions and inside baseball.

Notably, the “1983 action” has been used in the protest context. Consider the 1995 case Fordyce v. City of Seattle, decided by the Ninth Circuit. Jerry Edmon Fordyce recorded a protest march for a public-access channel (he said he was participating in the protest, too). After recording the police and bystanders on the sidewalk, Fordyce was arrested for violating a state wiretap statute. The charges didn’t stick, so he filed a “1983 action,” and the court ruled that police officers could be held liable for interfering with a reporter’s ability to videotape a protest march.

Parts of this piece have been excerpted, with permission, from a story the author published in 2012 in The Nation about the Occupy Wall Street protests.

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Jonathan Peters is CJR's press freedom correspondent. An attorney, he is an assistant professor of journalism at the University of Kansas, where he teaches and researches media law and policy, with an affiliate research position exploring big data and Internet governance in the KU Information & Telecommunication Technology Center. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.